Hoyt v. City of Saginaw.

The judgment of the circuit court should be reversed with costa and a new trial awarded.

The legislature may authorize a municipal corporation to assess the whole of any portion of the expenses of local improvements upon the property deemed to be particularly and specially benefited thereby, in proportion to the benefit received.

Where the charter of a city provides, that, whenever the common council shall deem any improvement in streets, etc., necessary, they shall so declare by resolution, such declaration must be made before the common council have authority to order the improvement.

APPEAL in chancery. The facts appear in the opinion.

John J. Wheeler, for complainant.

H. J. Brown, for defendant.

COOLEY, C.J. The bill in this case was filed to enjoin the collection of an assessment which had been made for the grading, ditching and planking of Genesee street, in the city of East Saginaw. It appears that the common council, by resolution, determined that the cost and expense of the improvement would be the sum of $15,612, and that the property in the vicinity of the improvement would be benefited by it to the amount of $11,700; and that they consequently assumed on behalf of the city the payment of $3,912, and directed the sum of $11,700 to be assessed upon the property in the vicinity which was particularly described in their resolution. The assessment was made accordingly, and the complainant, who was owner of a portion of the property described and assessed, seeks to enjoin the assessment on various grounds, which are particularly set out in his bill.

It is not disputed that the provisions of the charter are such as, if valid, will warrant this mode of apportioning and assessing the

Hoyt v. City of Saginaw.

expense of such improvements; and on reference thereto it appears that they establish a basis for the assessment, and require it to be made, by commissioners appointed for the purpose, upon the several parcels of land in proportion to the benefit each shall be deemed to have acquired by the making of the improvement. It is claimed, however, that those provisions are in conflict with the constitution and void, because, as it is alleged, there is and can be under them no rule for the apportionment of the expense, inasmuch as the council, according to their own "whim, prejudice or judgment," determine upon what property the expense shall be levied, and "an irresponsible tribunal appointed for the particular case and no other" makes the assessment. To this position the cases of Williams v. The Mayor, etc., 2 Mich. 560, and Woodbridge v. Detroit, 8 id. 274, are cited, neither of which, I think, will give it any countenance.

I have no doubt it is entirely competent for the legislature to authorize municipal incorporations to assess the whole or any portion of the expense of these local improvements upon the property deemed to be particularly and specially benefited thereby, in proportion to the benefit received, if, in the judgment of the legislature, that rule of apportionment is most just and equitable. There is nothing in the constitution which expressly prohibits it, and nothing in the nature of the power of taxation which is inconsistent with it. This mode of assessing such burdens has been repeatedly sustained by the courts of other states, and is supported by the reasoning of the court in the case of Williams v. The Mayor, etc., and by that of the majority of the court in Woodbridge v. Detroit. I shall content myself, therefore, in this case, with a reference to those cases and to that of Motz v. Detroit, just decided.

Whatever may be the basis of apportionment for such a tax, a taxing district must necessarily be established; and the legislature in the charter before us have deemed it proper to empower the common council to judge what property is specially benefited by the improvement and define the taxing district accordingly. As the question in such case is one which can only properly and intelligently be decided upon personal inspection of the improvement and the manner in which it will affect the neighboring property, it is obvious that the legislature is not the proper authority to pass upon it, and the natural and proper course would seem to be to refer it to some local tribunal. If the legislature consider the common council the proper tribunal for this purpose, there is not only

Hoyt v. City of Saginaw.

no constitutional principle which precludes the question being referred to their judgment, but there is a manifest propriety in the reference. And the mode prescribed by the charter of apportioning the tax throughout the district which the common council have defined, in proportion to the benefit which the several parcels of land receive, as determined by impartial commissioners, is equally free from valid objection.

The charter not being found defective, it remains to be seen whether the city authorities have complied with its provisions in the various steps taken by them, and which are contested in this suit. Nearly every proceeding of the common council is attacked as irregular, illegal and void; but as we find ourselves compelled to hold that the first step in the proceedings, which must be the foundation of all the others, and without which the council would have no jurisdiction to proceed at all, was not taken in compliance with the charter, it does not seem to be important, and is not in accord with our usual practice, to consider the objections taken to the subsequent proceedings, all of which are rendered immaterial by the neglect to comply with the law in the preliminary action.

The charter of the city of East Saginaw provides, that "the common council shall have full power to lay out, establish, open, extend, widen, straighten, alter, close, fill in or grade, vacate or abolish, any highways, streets, avenues, lanes, alleys, public grounds or spaces in said city whenever they may deem it a necessary public improvement," and that, "whenever the common council shall deem any such improvement necessary, they shall so declare by resolution, which shall be drawn by the attorney of the corporation, and said resolution shall describe the contemplated improvement." Laws of 1869, p. 997, §§ 1, 2 of title 6. This is made by the charter a necessary preliminary to the ordering by the council of any of the public improvements here enumerated, or to the levying of any assessment therefor; and however unimportant may seem this declaration in particular cases, the council have no authority to dispense with it.

From the records of the common council, it appears that the first action in reference to this improvement was had on the eleventh day of June, 1866, when a petition of citizens was presented, asking for the grading, turnpiking and planking of Genesee street, rom Jefferson street to the German Colony road; whereupon it was "Resolved, That the petition be received, and the improvement be

Hoyt v. City of Saginaw

ordered, the grading and turnpiking and one-half of the expense of planking to be paid by the property benefited, and the expense of one-half the planking to be paid by the city at large." On the same day and subsequently other resolutions regarding the improvement were adopted, more particularly ordering the improving, grading, ditching, turnpiking, draining and planking of Genesee street, between the points above mentioned, and prescribing the manner in which it should be done, and apportioning the amount of expense between the property benefited and the city at large; but there is no resolution entered upon the minutes of the council which, in the words of the charter, declares the improvement necessary, or comes any nearer such declaration than the one above quoted.

It may seem, perhaps, that the legislature have been over particular in requiring from the council an express preliminary declaration that they deem the improvement necessary, when the fact that they order it to be made is evidence that such is their opinion; and it has been argued in this case that the resolution of June 11, 1866, ought to be accepted as equivalent to the one made necessary by the charter, and as a sufficient compliance with the legislative requirement. It is evident, however, that if we hold this resolution sufficient, we also hold that the provision cited from the charter is idle, and is one a compliance with which may be dispensed with in any case. We have no authority to treat any part of a legislative enactment, which is not ambiguous in itself and is capable of rea sonable application, as so far unimportant that it is matter of indifference whether it is complied with or not. We must suppose the legislature saw sufficient reason for its adoption, and meant it to have effect; and, whether the reason is apparent to our minds or not, we have no discretion to dispense with a compliance with the

statute.

We can well conceive, however, that the legislature might suppose it possible that members of a city council could be induced to vote to direct a certain work to be done, when they would hesitate to say. upon their official oaths, that the work was actually necessary, if that was the specific question upon which they must record their opinion.

It is sometimes the case that some portion of the legislative enactment prescribing the course of proceeding to be pursued by public officers can be treated as directory, merely, and not mandatory; so that a failure in strict compliance will not defeat the

Hoyt v. City of Saginaw.

whole proceeding; but this can never be the case where that which is required to be done is in the nature of a condition precedent to subsequent action, and not simply a step in the course of the proceedings prescribed with a view to a regular, orderly and prompt transaction of the business in the progress of which such step is to be taken. The courts, in their anxiety to sustain the action of public officers, where irregularities have occurred without the intervention of bad faith, have gone to the very extreme in holding legislative enactments to be merely directory, and have perhaps sometimes made decisions which dispensed with those things which the legislature intended as essentials. The duty of the courts is to examine the statute carefully, with a view to giving the legislative intention effect; and they ought to sustain defective proceedings only in those cases where it is fairly inferable that they observe that intent more nearly by sustaining them than by setting them aside on account of the omitted formality. Such inference is not admissible in reference to those things which are preliminary and jurisdictional. It is evident, I think, that under the charter of East Saginaw, the declaration of the necessity for the improvement is a distinct act from and precedes the order that the improvement shall be made. It is the commencement of the proceeding, and is as indispensable to give the council jurisdiction as is process or the voluntary appearance of parties in civil actions to give jurisdiction to a court. It is the first of several steps, which, if duly and regularly taken, may result in fixing a lien upon the property of the citizen, and even in depriving him of it against his will. This step having never been taken, the whole proceeding is a nullity.

The formal objections which are taken by the defendants to the remedy the complainant has sought are all met by previous decisions of this court. Palmer v. Rich, 12 Mich. 414; Scofield v. City of Lansing, 17 id. 437. We think the circuit judge was right in decreeing a perpetual injunction, and the decree must be affirmed. with costs. Decree affirmed.

NOTE. On the question of the authority of a legislature to authorize a municipal corporation to assess the expenses of local improvements on the estates benefited, see the elaborate opinion of Mr. Justice RUGGLES in People v. Brooklyn, 4 Comst. (N. Y) 419, and cases cited. Also, Hancock Street, 6 Harris, 26; Commonwealth v. Supervisors, 29 Penn. St. 121; Ochenley v. City of Allegheny, 1 Casey, 128; Sharpless v. City of Philadelphia, 9 Harris, 147; Nichols v. Bridgeport, 23 Conn. 189; Alexander v. Mayor of Baltimore, 5 Gill. 383; State v. Dean, 3 Zab. 335; Mayor v. Maberry, 6 Humph. 368; Lowell v. Hadley, 8 Met. 180; Lowell v. French, 6 Cush. 223; Morris v. Chicago, 11 Ill. 650; Williams ▾ Commack, 27 Miss. 209. - REP.